Information Note on the Court’s case-law 26

January 2001

Lunari v. Italy - 21463/93

Judgment 11.1.2001 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Refusal to grant police assistance in order to carry out an eviction decided by Court order: violation

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Refusal to grant police assistance in o rder to carry out an eviction decided by court order: violation

Facts : A large number of lease agreements expired at the beginning of the 1980s. The Italian authorities, who were anxious to avoid the social tensions which, given the housing shortage, would inevitably have been generated by massive evictions of tenants, adopte d measures suspending or staggering enforcement of the evictions. Subsequently, the police were also instructed to stagger their interventions, owing to the number of requests made by landlords wishing to recover their property. However, the legal provisio ns suspending or staggering the evictions provided that they would become enforceable, as a matter of priority, where the tenant owed the lessor a sum amounting to two months’ rent.

The applicant had been renting a flat to a couple who subsequently divorce d. The wife, who had a modest income and a dependant child, succeeded to her husband on the lease. In September 1987, when the lease ran out, the applicant requested his tenant to quit the premises. When she failed to comply with his request, he summoned h er to appear in the district court, which, in an order of 9 October 1987, confirmed the notice to quit and served an order on the tenant to vacate the flat by 9 October 1988 at the latest. When the tenant persisted in her refusal to quit, the applicant had recourse on two occasions, in October 1989 and May 1991, to a bailiff. As the bailiff was unable to obtain the assistance of the police, he could not evict the tenant. The applicant went back to the district court in December 1991 seeking an order that si nce the tenant had stopped paying her rent and co-ownership service charges, she could be legally evicted. At the end of the trial, during which the tenant had disputed the applicant’s submissions, the court upheld the applicant’s request in a decision of April 1993. In the meantime, there had been nineteen unsuccessful attempts to evict the tenant. In July 1993 the bailiff instructed by the applicant obtained the assistance of the police for the first time and the tenant vacated the flat. In November 1992 the applicant had been ordered, by a court decision, to pay the managing agent the co-ownership service charges due from the tenant.

Law : Article 1 of Protocol No. 1 – The interference in question pursued a public-interest aim. In adopting measures suspen ding enforcement of the evictions and providing for exceptions to their application, the legislature was reasonably entitled to consider that the means chosen were appropriate to achieve the legitimate aims pursued. It remained to be determined whether, on the facts, a fair balance had been struck between the interests of the community and those of the landlord. The applicant had obtained an eviction order, enforcement of which had been scheduled for 9 October 1988. The legal conditions for eviction of the tenant had been satisfied, including during the period in which the evictions had been suspended, since she had not paid rent since 1991, a fact of which the applicant had informed the authorities. It was not until July 1993 that the applicant had secured the assistance of the police and, in the meantime, he had had to bring a legal action for a ruling that the rent had not been paid, and himself pay the co-ownership service charges due from his tenant to the managing agent. The restrictions imposed on his enjoyment of the flat, due, among other things, to a misapplication of the exceptions to the measures staggering police intervention, had resulted in an individual and excessive burden on him, which had failed to strike the necessary balance between peacef ul enjoyment of possessions and the requirements of the general interest.

Conclusion: violation (unanimous)

Article 6 § 1 – The right to enforcement of a court decision was an integral part of the right of access to a court. Accordingly, it could not be impeded, invalidated or excessively delayed. The eviction order which the applicant had obtained in 1987 was not enforced until July 1993. Although the rent arrears had entitled the applicant to the benefit of police assistance, sixteen months had elapsed before the district court acknowledged that fact. It had not been shown that the stay of execution had lasted only the tim e strictly necessary to remedy the housing situation or that the four years during which the court decision had remained unenforced had been used to find a solution to the problem of rehousing the applicant’s tenant.

Conclusion : violation (unanimous)

Artic le 41: The Court awarded the applicant 330,000 Italian lire for pecuniary damage and 15,000,000 lire for non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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